Department of Fair Employment & Housing v. Lucent Technologies, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DEPARTMENT OF FAIR EMPLOYMENT 
AND HOUSING, an agency of the
State of California,
Plaintiff-Appellant,
and No. 09-15057
STEVEN J. CARAUDDO, Real Party in  D.C. No.
Interest, 3:07-cv-03747-PJH
Petitioner-intervenor,
v.
LUCENT TECHNOLOGIES, INC.,
Defendant-Appellee.


DEPARTMENT OF FAIR EMPLOYMENT 
AND HOUSING, an agency of the
State of California,
Plaintiff,
No. 09-15060
and
STEVEN J. CARAUDDO, Real Party in  D.C. No.
3:07-cv-03747-PJH
Interest,
Petitioner-intervenor-Appellant, OPINION
v.
LUCENT TECHNOLOGIES, INC.,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding

5349
5350 FEHA v. LUCENT TECHNOLOGIES
Argued and Submitted
November 3, 2010—Stanford, California

Filed April 26, 2011

Before: Sidney R. Thomas and Sandra S. Ikuta,
Circuit Judges, and Jane A. Restani, Judge.*

Opinion by Judge Restani;
Dissent by Judge Ikuta

*The Honorable Jane A. Restani, Judge for the U.S. Court of Interna-
tional Trade, sitting by designation.
5354 FEHA v. LUCENT TECHNOLOGIES

COUNSEL

Susan Marie Saylor, Department of Fair Employment and
Housing, Oakland, California, for the plaintiff-appellant.

Steven R. Blackburn and Andrew Jonathon Sommer, Epstein
Becker & Green, PC, San Francisco, California, for the
defendant-appellee.

Jean K. Hyams, Boxer & Gerson LLP, Oakland, California,
Claudia Center, The Legal Aid Society, San Francisco, Cali-
fornia, and Sharon Rachel Vinick, Vinick Law Firm, San
Francisco, California, for the petitioner-intervenor-appellant.
 FEHA v. LUCENT TECHNOLOGIES 5355
OPINION

RESTANI, Judge:

Plaintiff Department of Fair Employment and Housing
(“DFEH”) and Plaintiff-Intervenor Steven J. Carauddo appeal
the district court’s grant of summary judgment in favor of
Defendant Lucent Technologies, Inc. (“Lucent”), Carauddo’s
former employer, on claims that he was terminated in viola-
tion of the California Fair Employment and Housing Act
(“FEHA”). In addition, DFEH challenges the district court’s
finding of diversity jurisdiction under 28 U.S.C. § 1332 and
Carauddo challenges the district court’s denial of his motion
to intervene. For the following reasons, we affirm.

BACKGROUND

Carauddo began working as a telecommunications installer
(“installer”) for Western Electric, Lucent’s predecessor, in
1966. An installer’s duties consist mostly of physical activi-
ties including running cable, drilling holes, setting frames,
and wiring cell cabinets filled with electronic components.
These activities require an installer to lift and maneuver vari-
ous items often weighing over thirty pounds.

In January 2005, Carauddo suffered a back injury while
performing his job and requested a paid sickness disability
benefit period (“disability period”) pursuant to Lucent’s Sick-
ness and Accident Disability Benefit Plan (“plan”). Lucent’s
plan requires a member of Lucent’s medical department, usu-
ally a nurse, to communicate with the employee and his health
care providers throughout the disability period. If an
employee does not return to work after fifty-two weeks, he is
terminated from Lucent’s active payroll. An employee, how-
ever, may apply for an additional unpaid disability leave of
absence if his prognosis is for a full recovery within six
months. If an employee’s health care provider disagrees with
Lucent’s decision, the employee may appeal to the Benefit
5356 FEHA v. LUCENT TECHNOLOGIES
Claim and Appeal Committee within 180 days of the notice
of termination.

Shortly after the commencement of Carauddo’s disability
period, one of Lucent’s nurses, Karen Utermahlen, contacted
him. In February 2005, Carauddo’s physician, Theodore Yee,
provided Utermahlen with a Healthcare Provider Report
(“report”) stating that Carauddo could return to work within
three weeks, but could not climb, reach above shoulder level,
or lift anything over twenty pounds. Utermahlen presented
Carauddo’s supervisors with this information, but they deter-
mined that no accommodation was available given these
restrictions. In April 2005, Carauddo’s new physician, Satish
Sharma, informed Utermahlen that the previous restrictions
specified by Yee needed to be continued. Utermahlen
informed Carauddo’s supervisors, but they determined that no
accommodation was available. In May 2005, Sharma
informed Utermahlen that Carauddo’s work restrictions would
continue until at least June. In August 2005, Carauddo’s new
physician, Tripta Sachdev, submitted an updated report to
Utermahlen, indicating that Carauddo could not climb, twist,
bend, stoop, reach above shoulder level, or lift anything above
twenty pounds and suggested that he could be given a desk
job. Utermahlen once again informed Carauddo’s supervisors
of these restrictions and they determined that no accommoda-
tion was feasible.

In October 2005, Sachdev provided Utermahlen with an
updated list of restrictions that indicated Carauddo could not
do repetitive bending, twisting, or lifting over twenty-five
pounds. Utermahlen presented this information to Carauddo’s
supervisors, but they determined that no accommodation was
possible. In November 2005, Carauddo’s new health care pro-
vider, Allen Kaisler-Meza, prepared an updated report listing
Carauddo’s work restrictions as limited twisting and bending,
and no lifting or carrying over ten pounds. In January 2006,
Kaisler-Meza provided Utermahlen with a note stating that
Carauddo was not allowed to lift, carry, push or pull an object
 FEHA v. LUCENT TECHNOLOGIES 5357
exceeding ten pounds and that these restrictions were to con-
tinue until his next examination scheduled for January 17,
2006. Utermahlen again contacted Carauddo’s supervisors
regarding available accommodations, but they determined that
none were available given these restrictions.

On January 18, 2006, Utermahlen telephoned Carauddo to
inquire as to the results of his latest examination, and he
informed her that he had been released to work and could lift
fifty pounds. On January 23, 2006, Utermahlen received an
updated report from Kaisler-Meza, which was signed on Janu-
ary 17, 2006, indicating that Carauddo could return to work
on January 25, 2006, and that he could “occasionally” lift or
carry weights of twenty-one to fifty pounds. Upon receipt of
this report, Utermahlen telephoned Carauddo and informed
him that she could not return him to work without a further
explanation from his physician and that she could not reach
Kaisler-Meza.

On January 25, 2006, the final day of his disability period,
Carauddo reported to work, but was informed by his supervi-
sor that he could not return to active duty without approval by
Lucent’s Medical Department. On January 27, 2006, Lucent’s
Benefits Department sent Carauddo a letter informing him
that his disability period had expired and that his employment
was terminated effective January 25, 2006. On January 31,
2006, Carauddo underwent a scheduled functional capacity
examination (“FCE”) that determined he could lift up to forty-
five pounds. In February 2006, however, Kaisler-Meza pro-
vided Utermahlen with updated work restrictions for Car-
auddo, stating that he could lift a maximum of thirty pounds.
Utermahlen contacted Carauddo’s supervisors with this
updated information, but they again determined that no
accommodation was feasible. In March 2006, Kaisler-Meza
issued a report clearing Carauddo for unrestricted work,
including the lifting of fifty pounds.

In June 2007, DFEH sued Lucent in California state court,
claiming that Carauddo’s termination violated the FEHA.
5358 FEHA v. LUCENT TECHNOLOGIES
Lucent removed the lawsuit to federal court and DFEH
moved to remand, but the district court concluded that it pos-
sessed diversity jurisdiction as Carauddo, not California, was
the real party in interest. Cal. Dep’t of Fair Emp’t & Hous.
v. Lucent Techs., Inc., No. C073747PJH, 2007 U.S. Dist.
LEXIS 77360, at *4-6 (N.D. Cal. Oct. 9, 2007) (“Lucent I”).
Carauddo then moved for leave to intervene as a right, but the
district court held that he could only permissively intervene
on a limited basis. Cal. Dep’t of Fair Emp’t & Hous. v.
Lucent Techs., Inc., No. C073747PJH, 2008 U.S. Dist. LEXIS
10851, at *4-5 (N.D. Cal. Feb. 1, 2008) (“Lucent II”).

In October 2008, Lucent moved for summary judgment.
The district court held that Lucent did not violate the FEHA
because the evidence demonstrated that Lucent communicated
frequently with Carauddo during his disability period, that
Lucent reasonably accommodated Carauddo, and that DFEH
failed to establish that Lucent’s legitimate reason for terminat-
ing him was merely pretextual. Cal. Dep’t of Fair Emp’t &
Hous. v. Lucent Techs., Inc., No. C073747PJH, 2008 U.S.
Dist. LEXIS 98960, at *30, *35-36, *39-40 (N.D. Cal. Dec.
8, 2008) (“Lucent III”). DFEH and Carauddo now appeal.

STANDARD OF REVIEW

“We review de novo a district court’s determination that
diversity jurisdiction exists.” Kroske v. U.S. Bank Corp., 432
F.3d 976, 979 (9th Cir. 2005) (internal quotation marks omit-
ted). Similarly, “[w]e review de novo a district court’s denial
of a motion to intervene as of right.” United States v. Aerojet
Gen. Corp., 606 F.3d 1142, 1148 (9th Cir. 2010). The denial
of permissive intervention, however, is reviewed for abuse of
discretion. Perry v. Proposition 8 Official Proponents, 587
F.3d 947, 955 (9th Cir. 2009)

“We review a district court’s decision to grant summary
judgment de novo.” Carver v. Holder, 606 F.3d 690, 695 (9th
Cir. 2010). “[W]e must determine, viewing the evidence in
 FEHA v. LUCENT TECHNOLOGIES 5359
the light most favorable to the nonmoving party, whether
there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.”
Adkins v. Mireles, 526 F.3d 531, 538 (9th Cir. 2008).

DISCUSSION

I. Diversity Jurisdiction

At the outset, we will review the district court’s determina-
tion that it possessed jurisdiction over this lawsuit. It remains
clear that “[d]espite a federal trial court’s threshold denial of
a motion to remand, if, at the end of the day and case, a juris-
dictional defect remains uncured, the judgment must be vacat-
ed.” Caterpillar Inc. v. Lewis, 519 U.S. 61, 76-77 (1996); see
also Ex parte Hoard, 105 U.S. 578, 579 (1881). Nevertheless,
“when there is no appeal of a denial of a remand motion . . .
the issue on appeal is whether the federal court would have
had jurisdiction had the case been filed in federal court in the
posture it had at the time of the entry of the final judgment.”
Carpenters Health & Welfare Trust Fund v. Tri Capital
Corp., 25 F.3d 849, 852 (9th Cir. 1994) (quoting Lewis v.
Time, Inc., 710 F.2d 549, 552 (9th Cir. 1983), overruled on
other grounds, S. Cal. IBEW-NECA Trust Funds v. Std. Indus.
Elec. Co., 247 F.3d 920 (9th Cir. 2001)); see Caterpillar Inc.,
519 U.S. at 76-77. Thus, we will consider whether diversity
jurisdiction would have existed if the case had been filed in
the posture it had at the time summary judgment was granted.

[1] “The district courts shall have original jurisdiction of
all civil actions where the matter in controversy exceeds the
sum or value of $75,000 . . . and is between . . . citizens of
different States.” 28 U.S.C. § 1332. For the purposes of diver-
sity jurisdiction, “a State is not a citizen of itself.” Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 291 n.44 (1985); Postal
Tel. Cable Co. v. Alabama, 155 U.S. 482, 487 (1894). Thus,
“neither a state nor a state agency [can] be a party to a diver-
sity action.” Fifty Assocs. v. Prudential Ins. Co., 446 F.2d
5360 FEHA v. LUCENT TECHNOLOGIES
1187, 1191 (9th Cir. 1970). Nevertheless, “the mere presence
on the record of the state as a party plaintiff will not defeat
the jurisdiction of the Federal court when it appears that the
state has no real interest in the controversy.” Ex parte
Nebraska, 209 U.S. 436, 444 (1908). Specifically, the
Supreme Court has provided that although “the State has a
governmental interest in the welfare of all its citizens, in com-
pelling obedience to the legal orders of all its officials, and in
securing compliance with all its laws,” these “general govern-
mental interest[s]” will not satisfy the real party to the contro-
versy requirement for the purposes of defeating diversity
because “if that were so the state would be a party in interest
in all litigation . . . .” Mo., Kan. and Tex. Ry. Co. v. Hickman,
183 U.S. 53, 60 (1901) (“Missouri Railway”).1 For this rea-
son, a State’s presence in a lawsuit will defeat jurisdiction
under 28 U.S.C. § 1332(a)(1) only if “the relief sought is that
which inures to it alone, and in its favor the judgment or
decree, if for the plaintiff, will effectively operate.”2 Id. at 59;
1
In Missouri Railway, the plaintiffs, citizens of Missouri who used a
certain bridge, sued a railroad company, a citizen of Kansas, because it
failed to comply with the railroad commissioner’s rates and charges order.
183 U.S. at 58-59. The railroad company attempted to remove the lawsuit
to federal court, as the requirements for diversity jurisdiction were satis-
fied, but the State retained the case, reasoning that the State of Missouri
was the real party plaintiff. Id. The Supreme Court, however, reversed,
holding that judgment would effectively operate in favor of only the indi-
vidual plaintiffs, not the state. Id. at 59-60.
2
DFEH contends that the district court’s decision was in error because
it ignored case law holding that a state’s quasi-sovereign interest can ren-
der it a real party in the controversy. The concept of a quasi-sovereign
interest is a judicial construct that provides a state with standing to bring
forth a claim. See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,
458 U.S. 592, 600-601 (1982). Although the Supreme Court has never
clearly defined what constitutes a quasi-sovereign interest, it does not
include “sovereign interests, proprietary interests, or private interests pur-
sued by the State as a nominal party.” Id. at 602. Rather, it “consist[s] of
a set of interests that the State has in the well-being of its populace,”
which can include, for example, public nuisances and the economic well-
being of its citizens. Id. at 602-05.
 FEHA v. LUCENT TECHNOLOGIES 5361
Navarro Sav. Ass’n v. Lee, 446 U.S. 458, 460 (1980)
(“ ‘citizens’ upon whose diversity a plaintiff grounds jurisdic-
tion must be real and substantial parties to the controversy”);
California ex rel. McColgan v. Bruce, 129 F.2d 421, 423 (9th
Cir. 1942). In making this determination, courts consider the
substantive state law. See Kuntz v. Lamar Corp., 385 F.3d
1177, 1183 (9th Cir. 2004).3 Thus, we will consider what
interest California has in this litigation pursuant to its laws.

Although the concept of a quasi-sovereign interest was originally devel-
oped in the context of standing to maintain an action, see Missouri v. Illi-
nois, 180 U.S. 208, 241 (1901); Louisiana v. Texas, 176 U.S. 1, 19 (1900),
some district courts have held that a decree will effectively operate in
favor of a state so long as these interests are present, thus rendering the
state a real party in interest for the purposes of diversity, see Maine v.
Data Gen. Corp., 697 F. Supp. 23, 25 (D. Me. 1988); Dep’t Fair Emp’t
Hous. v. Corrs. Corp. of Am., No. CVF091388LJODLB, 2009 U.S. Dist.
LEXIS 114446, at *7-11 (E.D. Cal. Dec. 4, 2009); Wisconsin v. Abbott
Labs., Amgen, Inc., 341 F. Supp. 2d 1057, 1061-63 (W.D. Wis. 2004);
West Virginia v. Morgan Stanley & Co., 747 F. Supp. 332, 338-39
(S.D.W. Va. 1990); Missouri ex rel. Webster v. Freedom Fin. Corp., 727
F. Supp. 1313, 1317-18 (W.D. Mo. 1989); New York v. Gen. Motors
Corp., 547 F. Supp. 703, 706-707 (S.D.N.Y. 1982). This use of quasi-
sovereign interest to satisfy Missouri Railway’s unique relief requirement
is contradictory to the very language of that opinion and has never been
suggested or endorsed by the Supreme Court. See Illinois v. SDS W. Corp.,
640 F. Supp. 2d 1047, 1051-52 (C.D. Ill. 2009). Furthermore, other circuit
courts have declined such an understanding, as it would effectively render
Missouri Railway moribund. See Md. Stadium Auth. v. Ellerbe Becket Inc.,
407 F.3d 255, 261-63 (4th Cir. 2005); District of Columbia ex rel. Am.
Combustion, Inc. v. Transamerica Ins. Co., 797 F.2d 1041, 1047 (D.C.
Cir. 1986).
3
Although this approach originally developed under a Rule 17(a) analy-
sis, see Allstate Ins. Co. v. Hughes, 358 F.3d 1089, 1093-94 (9th Cir.
2004) (considering substantive state law for purposes of Fed. R. Civ. P.
17(a)) the Ninth Circuit has also used it when considering diversity, see
Kuntz, 385 F.3d at 1183 (considering substantive state law when making
a diversity determination); see also, Navarro Sav. Ass’n, 446 U.S. at 462-
63 n.9 (“There is a ‘rough symmetry’ between the real party in interest
standard of Rule 17(a) and the rule that diversity jurisdiction depends
upon the citizenship of real parties to the controversy. But the two rules
serve different purposes and need not produce identical outcomes in all
cases.”).
5362 FEHA v. LUCENT TECHNOLOGIES
A. Cal. Gov’t Code § 12920

[2] DFEH contends that it is a real party in the controversy
for the purposes of diversity jurisdiction because the statute
itself states that California has its own interest in such litiga-
tion. The relevant statutory language provides that “it is nec-
essary to protect and safeguard the right and opportunity of all
persons to seek, obtain, and hold employment without dis-
crimination” because “the practice of denying employment
opportunity and discriminating in the terms of employment
. . . foments domestic strife and unrest, deprives the state of
the fullest utilization of its capacities for development and
advancement, and substantially and adversely affects the
interest of employees, employers, and the public in general,”
and is “against public policy.” Cal. Gov’t Code § 12920.

[3] Although there is little doubt that this provision sup-
ports a finding that California is a real party in interest for the
purposes of a standing, see EEOC v. United Parcel Serv., 860
F.2d 372, 374 (10th Cir. 1988), this language fails to render
it a real party in the controversy for the purposes of diversity
jurisdiction because these articulated interests are the very
“general governmental interest[s]” that the Supreme Court has
stated cannot satisfy the diversity requirement,4 see Missouri
Railway, 183 U.S. at 60.5 Indeed, the statute itself supports
4
Although the FEHA enables California to bring a lawsuit and there-
fore, arguably control the course of litigation, see Atchison, T. & S.F. Ry.
Co. v Phillips, 176 F. 663, (9th Cir. 1910) (providing that private parties
are “interested” if “they have some control over the action, whether they
will be personally affected thereby or not”), control alone cannot render
California a real party in interest because a state can always bestow upon
itself control over virtually any lawsuit via legislation, see Missouri Rail-
way, 183 U.S. at 60.
5
It seems logical that a state can possess standing to bring forth a claim,
but lack status as a real party in the controversy for the purposes of diver-
sity jurisdiction, as the categories that satisfy the latter are more limited
than those of the prior. Compare Alfred L. Snapp & Son, Inc., 458 U.S.
at 600-02 (a state is a real party in interest if it possesses a sovereign,
 FEHA v. LUCENT TECHNOLOGIES 5363
this conclusion, providing that this legislation “shall be
deemed an exercise of the police power of the state for the
protection of the welfare, health, and peace of the people of
this state.”6 Cal. Gov’t Code § 12920 (emphasis added). Addi-
tionally, the language of the FEHA supports a conclusion that
any judgment will effectively operate in favor of the person
claiming to be aggrieved. See Cal. Gov’t Code § 12965(c)(2)
(stating that “the person claiming to be aggrieved shall be the
real party in interest”7).

B. Equitable Relief

Next, DFEH argues that it is a real party in the controversy
for the purposes of diversity jurisdiction because it sought

quasi-sovereign, or a proprietary interest), with Missouri Railway, 183
U.S. at 60 (a state’s presence in a lawsuit will only defeat diversity juris-
diction if that state possesses an interest as an “artificial person”). Any dis-
trict courts that have held to the contrary are incorrect. See, e.g., Gen.
Motor Corp., 547 F. Supp. at 705-06 n.5 (reasoning that “[i]nherent in the
conclusion that a state has standing to sue as parens patriae is the conclu-
sion that the state has a quasi-sovereign interest in the controversy inde-
pendent of the interests of individual citizens”).
6
Furthermore, the state cannot possess the ability to defeat federal juris-
diction under 28 U.S.C. § 1332(a)(1), over an action between what would
otherwise be two diverse citizens, merely by enacting legislation pursuant
to its police powers. See Missouri Railway, 183 U.S. at 60 (providing that
if such a proposition were true, a state could defeat federal jurisdiction in
all litigation brought pursuant to its laws).
7
Although this statutory language is helpful in analyzing the State’s
interest under the substantive law, see Glacier Gen. Assurance Co. v. G.
Gordon Symons Co., 631 F.2d 131, 133-34 (9th Cir. 1980) (providing that
“[t]he identity of the real party in interest . . . depends on the legal rela-
tionships of the parties under applicable substantive law”), its pronounce-
ment of the real party in interest is not binding on courts for the purposes
of diversity jurisdiction, see Allstate, 358 F.3d at 1094 (providing that
“[t]he forum state’s procedural statute or rule defining the real party in
interest concept is not applicable . . . the federal courts are concerned only
with that portion of state law from which the specific right being sued
upon stems” (citation and emphasis omitted)).
5364 FEHA v. LUCENT TECHNOLOGIES
equitable relief. In its prayer for relief, DFEH asked the court
to order Lucent to 1) “cease and desist from discriminating
against Real Party and other employees on the basis of physi-
cal or mental disability;” 2) “develop, implement, and dissem-
inate a policy that clearly advises management and
supervisors of their obligation[s] under the FEHA;” 3) “train
all management-level employees, and all supervisors in the
chain of command, regarding [Lucent’s] duties” under the
FEHA; and 4) “post an order in a conspicuous place in all
work locations that dispatch Installers in the State of Califor-
nia, stating that Defendant has been found in violation of the
FEHA, and specifying the remedies ordered.” ER 671.

[4] DFEH’s claim that these equitable remedies constitute
a substantial state interest is unavailing, as most of these
forms of equitable relief could be obtained by the individual
aggrieved. In fact, Carauddo’s prayer for relief includes a
request “[f]or a permanent and mandatory injunction prohibit-
ing Defendants from committing future violations of the laws
and public policies” of the FEHA. ER 646. Any remaining
interests that are unique to DFEH’s lawsuit, namely the train-
ing of Lucent’s employees, are tangential to the alleged relief
sought for Carauddo and, thus, cannot render DFEH a real
party to the controversy under these circumstances.8 See
Geeslin v. Merriman, 527 F.2d 452, 455 (6th Cir. 1975) (pro-
viding that “[t]he question as to whether or not the state is the
real party in interest must be determined by the essential
nature and effect of the proceeding as it appears from the
entire record” (internal quotation marks omitted)).
8
In its prayer for relief, DFEH first asked the court to order Lucent to
1) reinstate Carauddo to his installer position or “pay his back pay, front
pay, and other benefits of employment . . . with interest at the applicable
legal rate”; 2) pay the “Real Party damages for his emotional distress, ner-
vous pain, and suffering”; and 3) pay Carauddo punitive damages. ER
670. It is clear that these forms of relief are for the benefit of Carauddo,
and therefore, cannot support a finding that DFEH is a real party plaintiff
for the purposes of diversity jurisdiction. See Missouri Railway, 183 U.S.
at 59.
 FEHA v. LUCENT TECHNOLOGIES 5365
[5] For these reasons, the statutory scheme does not sup-
port a finding that DFEH is a real party in the controversy for
the purposes of diversity jurisdiction. Accordingly, the district
court correctly determined that it possessed jurisdiction.9 See
Lucent I, 2007 U.S. Dist. LEXIS 77360, at *4-6.

II. Intervention

A. Right to Intervene

[6] An applicant has a right to intervene if he “claims an
interest relating to the property or transaction that is the sub-
ject of the action, and is so situated that disposing of the
action may as a practical matter impair or impede the
movant’s ability to protect its interest, unless existing parties
adequately represent that interest.” Fed. R. Civ. P. 24(a)(2).
The Ninth Circuit has provided that in order for an applicant
to intervene, as a right:

(1) [T]he application for intervention must be timely;
(2) the applicant must have a significantly protect-
able interest relating to the property or transaction
that is the subject of the action; (3) the applicant
must be so situated that the disposition of the action
may, as a practical matter, impair or impede the
applicant’s ability to protect that interest; and (4) the
applicant’s interest must not be adequately repre-
sented by the existing parties in the lawsuit.

DBSI/TRI IV Ltd. v. United States, 465 F.3d 1031, 1037 (9th
Cir. 2006) (internal quotation marks omitted).10
9
The district court concluded that the amount in controversy exceeds the
$75,000 statutory requirement. Lucent I, 2007 U.S. Dist. LEXIS 77360, at
*6. Neither party contests this determination.
10
Fed. R. Civ. P. 24(a)(1) recognizes the unconditional right to intervene
when such is provided by federal statute. This subsection does not apply
here.
5366 FEHA v. LUCENT TECHNOLOGIES
Both parties agree that the first three prongs of this test
were satisfied in this case. Carauddo claims that he also satis-
fied the fourth prong because he was inadequately repre-
sented. He asserts that DFEH “litigate[s] in order to further
the societal goal of ending discrimination, without regard to
whether the result is the most advantageous that could be
achieved on behalf of the individual victim.” This claim lacks
merit.

[7] “In the absence of a very compelling showing to the
contrary, it will be presumed that a state adequately represents
its citizens when the applicant shares the same interest.”
Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)
(internal quotation marks omitted). “[M]ere [ ] differences in
[litigation] strategy . . . are not enough to justify intervention
as a matter of right.” Perry, 587 F.3d at 954 (internal quota-
tion marks omitted). Carauddo’s vague speculation falls far
short of a “very compelling showing.”11 California ex rel.
Lockyer v. United States, 450 F.3d 436, 443-44 (9th Cir.
2006) (holding that an applicant “must demonstrate a likeli-
hood that the government will abandon or concede a poten-
tially meritorious” position).

[8] Nor does public policy support Carauddo’s uncondi-
tional right to intervene. Although the FEHA provides that in
employment discrimination cases brought by DFEH, “the per-
son claiming to be aggrieved shall be the real party in interest
and shall have the right to participate as a party and be repre-
sented by his or her own counsel,” Cal. Gov’t Code
§ 12965(c)(2), state law cannot negate the requirement of the
federal rule that Carauddo demonstrate that he is not ade-
11
This finding is further supported by the discussion in the previous sec-
tion. See, supra Sect. (I)(B)(i). Arguably, if these parties sought drastically
different remedies, there would be a greater risk of inadequate representa-
tion. See Pub. Serv. Co. of N.H. v. Patch, 136 F.3d 197, 209 (1st Cir.
1998) (petitioner lacks right to intervene where “no divergence of interest
between the two bodies in respect to the causes of action pleaded”). This,
however, is not the case.
 FEHA v. LUCENT TECHNOLOGIES 5367
quately represented by California, see Patch, 136 F.3d at 208
(providing that “[a] state statute can inform the Rule 24(a)(2)
calculus, but it cannot displace the requirement that a would-
be intervenor satisfy each of the rule’s prerequisites”).12 As
Carauddo has failed to make such a showing, the district
court’s denial of his motion to intervene as a right was not in
error.

B. Permissive Intervention

Although the district court denied Carauddo’s motion to
intervene as a right, it allowed him to intervene permissibly
pursuant to Fed. R. Civ. P. 24(b). Lucent II, 2008 U.S. Dist.
LEXIS 10851, at *4-5. The district court stated that:

First, Mr. Carauddo may file motions or oppositions
to motions only as to those claims not asserted by
DFEH. That is, there shall be no duplicative motions
or oppositions. Second, all discovery must be shared.
There shall be no discovery propounded by Mr. Car-
auddo that duplicates discovery propounded by
DFEH. Third, the court will not approve any request
for attorney’s fees for duplicative work performed
by Mr. Carauddo’s counsel, or for any work on the
claims brought by DFEH.

Id. at *5. Carauddo claims that these limitations were unrea-
sonable. This claim lacks merit.

[9] Under Fed. R. Civ. P. 24(b), “the court may permit
anyone to intervene who . . . has a claim or defense that shares
with the main action a common question of law or fact.” Fed.
R. Civ. P. 24(b). When making this discretionary determina-
12
Carauddo also argues that he would have been entitled to intervene if
the Equal Employment Opportunity Commission had filed an ADA claim
in federal court. 42 U.S.C. § 2000e-5(f)(1). Such a consideration, how-
ever, is irrelevant as no ADA claims are alleged.
5368 FEHA v. LUCENT TECHNOLOGIES
tion, a district court “must consider whether the intervention
will unduly delay or prejudice the adjudication of the original
parties’ rights.” Fed. R. Civ. P. 24(b)(3). “The district court’s
discretion . . . under Rule 24(b), to grant or deny an applica-
tion for permissive intervention includes discretion to limit
intervention to particular issues.” Van Hoomissen v. Xerox
Corp., 497 F.2d 180, 181 (9th Cir. 1974); see Columbus-Am.
Discovery Grp. v. Atl. Mut. Ins. Co., 974 F.2d 450, 469 (4th
Cir. 1992) (providing that “[w]hen granting an application for
permissive intervention, a federal district court is able to
impose almost any condition”); Beauregard, Inc. v. Sword
Servs. LLC, 107 F.3d 351, 352-53 (5th Cir. 1997).

[10] Carauddo first argues that the district court denied
him representation when it prohibited his counsel from mak-
ing any argument regarding DFEH’s claims at the summary
judgment hearing. As previously discussed, however, Car-
auddo was adequately represented by DFEH on these claims.
See Arakaki, 324 F.3d at 1086. It was reasonable, therefore,
for the district court to limit Carauddo’s intervention in this
regard. See Stringfellow v. Concerned Neighbors in Action,
480 U.S. 370, 380 (1987) (providing that “in a complex case
. . . a district judge’s decision on how best to balance the
rights of the parties against the need to keep the litigation
from becoming unmanageable is entitled to great deference”);
Spangler v. Pasadena City Bd. of Educ., 552 F.2d 1326 (9th
Cir. 1977) (providing that a district court may consider factors
including adequate representation and whether an applicant
will significantly contribute); see also AT&T Corp. v. Sprint
Corp., 407 F.3d 560, 561-62 (2nd Cir. 2005) (providing that
“[a] denial of permissive intervention has virtually never been
reversed” because of the considerable discretion afforded to
district courts).

[11] Next, Carauddo argues that it was unreasonable for
the district court to preemptively limit attorneys’ fees. The
preemptive nature of this ruling, however, does not render it
unreasonable, as a court may deny a plaintiff-intervenor attor-
 FEHA v. LUCENT TECHNOLOGIES 5369
ney’s fees in a civil rights action if “they played a de minimis
role.” Seattle Sch. Dist. No. 1 v. Washington, 633 F.2d 1338,
1349 (9th Cir. 1980); see Grove v. Mead Sch. Dist. No. 354,
753 F.2d 1528, 1535 (9th Cir. 1985) (“Awards to intervenors
should not be granted unless the intervenor plays a significant
role in the litigation.”).

The district court did not abuse its discretion in placing var-
ious limitations on Carauddo as an intervenor.

III. The FEHA13

A. Failure to Interact

DFEH appeals the district court’s conclusion that Lucent’s
interaction with Carauddo was sufficient under California
law. Lucent III, 2008 U.S. Dist. LEXIS 98960, at *39-40. For
the following reasons, we agree with the district court.

[12] Under the FEHA,14 “[i]t is an unlawful employment
practice . . . [f]or an employer . . . to fail to engage in a timely,
good faith, interactive process with the employee . . . to deter-
13
Although Carauddo’s only substantive claim on appeal is his common
law claim of wrongful termination, we will consider the substance of his
arguments regarding the FEHA, as his wrongful termination claim is
entirely reliant on a finding of discrimination under the FEHA. See Lucent
III, U.S. Dist. LEXIS 98960, at *40-42.
14
“[F]ederal courts sitting in diversity jurisdiction apply state substan-
tive law and federal procedural law.” Zamani v. Carnes, 491 F.3d 990,
995 (9th Cir. 2007) (internal quotation marks omitted). “Because of the
similarity between state and federal employment discrimination laws, Cal-
ifornia courts look to pertinent federal precedent when applying [its] own
statutes.” Guz v. Bechtel Nat’l, Inc., 8 P.3d 1089, 1113 (Cal. 2000). Never-
theless, “because FEHA provides protections independent from those in
the [ADA] and afford[s] additional protections [than thereof, the ADA]
. . . state law will part ways with federal law in order to advance the legis-
lative goal of providing greater protection to employees than the ADA.”
Gelfo v. Lockheed Martin Corp., 43 Cal. Rptr. 3d 874, 892 (Cal. Ct. App.
2006) (internal quotation marks and citations omitted).
5370 FEHA v. LUCENT TECHNOLOGIES
mine effective reasonable accommodations, if any, in
response to a request for reasonable accommodation by an
employee . . . with a known physical or mental disability.”
Cal. Gov’t Code § 12940(n). “[T]he interactive process
requires communication and good-faith exploration of possi-
ble accommodations between employers and individual
employees with the goal of identify[ing] an accommodation
that allows the employee to perform the job effectively.”
Nadaf-Rahrov v. Neiman Marcus Grp., Inc., 83 Cal. Rptr. 3d
190, 219 (Cal. Ct. App. 2008) (internal quotation marks omit-
ted).

[13] During Carauddo’s disability period, he was in con-
tact with at least two Lucent employees, Utermahlen and his
immediate supervisor, Claudine Strange, yet failed to bring to
Lucent’s attention any possible accommodations that it had
not considered. Any failure to interact adequately, therefore,
was caused by Carauddo and, as a result, Lucent cannot be
held liable. See Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1115
(9th Cir. 2000) (“[C]ourts should attempt to isolate the cause
of the breakdown [in the interactive process] and then assign
responsibility so that liability . . . ensues only where the
employer bears responsibility for the breakdown.” (internal
quotation marks omitted)), rev’d on other grounds, 535 U.S.
391 (2002). Thus, this undisputed evidence fails to raise a
genuine issue of material fact as to DFEH’s failure to interact
claim.15
15
Although Carauddo did not participate in any of Lucent’s internal con-
versation regarding available accommodation, this does not render Lucent
in violation of the FEHA, as Carauddo never expressed a desire to return
to work with accommodation. See Barnett, 228 F.3d at 1115. Furthermore,
the law affords employers the ability to have some internal discussion. See
id. (“The interactive process requires that employers analyze job functions
to establish the essential and nonessential job tasks.”).
 FEHA v. LUCENT TECHNOLOGIES 5371
B. Reasonable Accommodation

DFEH appeals the district court’s decision to grant sum-
mary judgment to Lucent on DFEH’s reasonable accommoda-
tion claim, arguing there was a genuine issue of material fact
as to whether Lucent failed to reasonably accommodate Car-
auddo. Lucent III, 2008 U.S. Dist. LEXIS 98960, at *34-36.
For the following reasons, we agree with the district court.

[14] Pursuant to the FEHA, it is unlawful “[f]or an
employer . . . to fail to make reasonable accommodation for
the known physical . . . disability of an . . . employee.” Cal.
Gov’t Code § 12940(m). An employer, however, is not
required to provide “an accommodation that is demonstrated
by the employer . . . to produce undue hardship to its opera-
tion.” Id. “Reasonable accommodation may include either . . .
[m]aking existing facilities used by employees readily acces-
sible to, and usable by, individuals with disabilities” or “[j]ob
restructuring, part-time or modified work schedules, reassign-
ment to a vacant position, acquisition or modification of
equipment or devices, adjustment or modifications of exami-
nations, training materials or policies, the provision of quali-
fied readers or interpreters, and other similar accommodations
for individuals with disabilities.” Cal. Gov’t Code § 12926(n).
An “employer cannot prevail on summary judgment on a
claim of failure to reasonably accommodate unless it estab-
lishes through undisputed facts” that “reasonable accommoda-
tion was offered and refused,” that “there simply was no
vacant position within the employer’s organization for which
the disabled employee was qualified and which the disabled
employee was capable of performing with or without accom-
modation,” or that “the employer did everything in its power
to find a reasonable accommodation, but the informal interac-
tive process broke down because the employee failed to
engage in discussions in good faith.” Jensen v. Wells Fargo
Bank, 102 Cal. Rptr. 2d 55, 68 (Cal. Ct. App. 2000).16
16
It is clear that California law affords Carauddo a right to a reasonable
accommodation, regardless of whether he specifically sought it. See Hum-
5372 FEHA v. LUCENT TECHNOLOGIES
[15] The essential functions of the installer position
included “frequently” lifting up to thirty pounds from waist to
overhead, “occasionally” lifting up to fifty pounds from floor
to waist, and “frequently” carrying up to fifty pounds for as
long as one hundred feet.17 ER 516. When Carauddo was no
longer physically able to perform these functions,18 Lucent’s
plan afforded him a disability period to rehabilitate.19 See
Hanson v. Lucky Stores, Inc., 87 Cal. Rptr. 2d 487, 494 (Cal.
Ct. App. 1999) (holding that “a finite leave of absence has
been considered to be a reasonable accommodation under

phrey v. Mem’l Hosp. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001) (“[o]nce
an employer becomes aware of the need for accommodation, that
employer has a mandatory obligation . . . to engage in an interactive pro-
cess with the employee to identify and implement appropriate reasonable
accommodations”).
17
Lucent’s functional job description defines “occasionally” as consti-
tuting “6-33% of the time in an 8 hour work day,” “frequently” as consti-
tuting “34-66% of the time in an 8 hour work day,” and “continuously”
as constituting “67-100% of the time in an 8 hour work day.” ER 516.
18
Lucent’s written job description, supported by numerous employee
accounts, can be relied upon to establish the essential functions of the
installer position, regardless of what Carauddo’s individual experience in
that position may have entailed. See Dark v. Curry Cnty., 451 F.3d 1078,
1087 (9th Cir. 2006) (providing that “consideration shall be given to the
employer’s judgment as to what functions of the job are essential, and if
an employer has prepared a written description before advertising or inter-
viewing applicants for the job, this description shall be considered evi-
dence of the essential functions of the job” (internal quotation marks
omitted)).
19
If Lucent had done nothing other than provide Carauddo with a paid
leave of absence, it is likely that Lucent would have violated Cal. Gov’t
Code § 12940(m) because it would have failed to consider other possibili-
ties such as job restructuring, modification of equipment, and reassign-
ment. See Jensen, 102 Cal. Rptr. 2d at 68 (a leave of absence is a
reasonable accommodation only if “the employee will be able to return to
an existing position at some time in the foreseeable future”); Cal. Gov’t
Code §§ 12926(n). During Carauddo’s disability period, however, the evi-
dence shows that Lucent attempted, without success, to further accommo-
date him, as indicated in the text.
 FEHA v. LUCENT TECHNOLOGIES 5373
ADA, provided it is likely that following the leave the
employee would be able to perform his or her duties”); Jen-
sen, 102 Cal. Rptr. 2d at 68. During this time, Lucent repeat-
edly considered whether Carauddo could perform the tasks of
an installer given his physical restrictions or alternatively be
placed in another position, but it determined that he could not.20
Lucent was not required to do more under California law,
such as modifying the installer position or extending the dis-
ability period indefinitely. See Dark, 451 F.3d at 1089 (pro-
viding that reasonable accommodation “does not require an
employer to exempt an employee from performing essential
functions or to reallocate essential functions to other employ-
ees”); Hanson, 87 Cal. Rptr. 2d at 494 (providing that an
employer’s duty to reasonably accommodate a disabled
employee “does not require the employer to wait indefinitely
for an employee’s medical condition to be corrected” (internal
quotation marks omitted)); Nadaf-Rahrov, 83 Cal. Rptr. 3d at
222. Furthermore, as previously discussed, Carauddo failed to
engage in or seek to be included in any discussion regarding
what accommodations were available. Thus, as a matter of
law, the undisputed evidence cannot support a finding that
Lucent failed to provide Carauddo with a reasonable accommo-
dation.21
20
The question of whether an alternative position was available fre-
quently raises a genuine issue of material fact in reasonable accommoda-
tion cases. See Spitzer v. Good Guys, Inc., 96 Cal. Rptr. 2d 236, 246 (Cal.
Ct. App. 2000). Neither DFEH nor Carauddo, however, raise this claim.
21
Although there is evidence that certain devices, such as dowels, dol-
lies, Masonite, hoists, crowbars, and drift pins, were used by installers to
alleviate lifting the heaviest weights, the same evidence shows that these
tools did not eliminate all of the strenuous lifting. For instance, it is clear
that installers had to tip heavy frames back in order to slide an assistive
device underneath. In addition, even with the assistance of the such
devices, installers had to manually maneuver heavy frames in order to
“muscle [them] into place.” ER 281:4. The evidence also shows that bat-
tery hoists could be used to move heavy batteries, but these devices were
limited to specific objects and certain locations. These tools, therefore,
could not eliminate all lifting requirements from the installer position. Fur-
5374 FEHA v. LUCENT TECHNOLOGIES
C. Disability Discrimination

DFEH next challenges the district court’s decision to grant
summary judgment to Lucent on DFEH’s disability discrimi-
nation claim, arguing, inter alia, that genuine issues of mate-
rial fact exist as to pretext. Lucent III, 2008 U.S. Dist. LEXIS
98960, at *34-36. For the following reasons, we affirm.

[16] “The FEHA prohibits discrimination against any per-
son with a disability but, like the ADA, provides that the law
allows the employer to discharge an employee with a physical
disability when that employee is unable to perform the essen-
tial duties of the job even with reasonable accommodation.”
Green v. California, 165 P.3d 118, 119 (Cal. 2007); see Cal.
Gov’t Code § 12940(a)(1). “California has adopted the three-
stage burden-shifting test established by the United States
Supreme Court for trying claims of discrimination . . . based
on a theory of disparate treatment” because “such claims must
usually be proved circumstantially.”22 Guz, 8 P.3d at 1113.
Generally, “the plaintiff [has] an initial burden of establishing
a prima facie case of discrimination.” Godwin, 150 F.3d at
1220. When an employer moves for summary judgment, how-
ever, “the burden is reversed . . . because the defendant who
seeks summary judgment bears the initial burden.” Hanson,
87 Cal. Rptr. 2d at 493 (internal quotation marks omitted).
Thus, “[t]o prevail on summary judgment, [the employer is]

thermore, some of the very devices that DFEH claims could have accom-
modated Carauddo are listed as equipment used to perform the installer
job by the same functional job description that described the fifty pound
lifting and carrying requirements. This evidence shows that the lifting and
carrying requirements of the installer position contemplated these assistive
tools.
22
The McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), frame-
work is applicable in this case because there is no evidence that “proves
the fact [of discriminatory animus] without inference or presumption.”
Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) (inter-
nal quotation marks omitted).
 FEHA v. LUCENT TECHNOLOGIES 5375
required to show either that (1) plaintiff could not establish
one of the elements of [the] FEHA claim or (2) there was a
legitimate, nondiscriminatory reason for its decision to termi-
nate plaintiff’s employment.” Avila v. Cont’l Airlines, Inc., 82
Cal. Rptr. 3d 440, 449 (Cal. Ct. App. 2008).

i. Legitimate, Nondiscriminatory Reason

To demonstrate a legitimate, nondiscriminatory reason for
its decision to terminate Carauddo, Lucent “must show that
the procedure by which [he] was terminated was validly and
fairly devised and administered to serve a legitimate business
purpose.” Hanson, 87 Cal. Rptr. 2d at 492 (internal quotation
marks omitted). Under the FEHA, employers are afforded an
inability to perform defense. See Green, 165 P.3d at 125; Cal.
Code Regs. tit. 2, § 7293.8(b). Specifically, the FEHA pro-
vides:

This part does not prohibit an employer from . . . dis-
charging an employee with a physical or mental dis-
ability, or subject an employer to any legal liability
resulting from . . . the discharge of an employee with
a physical or mental disability, where the employee,
because of his or her physical or mental disability, is
unable to perform his or her essential duties even
with reasonable accommodations, or cannot perform
those duties in a manner that would not endanger his
or her health or safety or the health or safety of oth-
ers even with reasonable accommodations.

Cal. Gov’t Code § 12940(a)(1).

[17] As previously discussed, there is no genuine issue of
material fact as to Carauddo’s inability to perform the essen-
tial functions of the installer position, and Lucent’s inability
to reasonably accommodate him.23 This same evidence estab-
23
The undisputed facts establish that Carauddo was not cleared by his
doctor to perform the essential functions of the installer position because
5376 FEHA v. LUCENT TECHNOLOGIES
lishes a legitimate, nondiscriminatory reason for Carauddo’s
termination. See Cal. Gov’t Code § 12940(a)(1). Thus, the
burden shifts to DFEH to show pretext.

ii. Pretext

[18] “Once the employer makes a sufficient showing . . .
then the discharged employee seeking to avert summary judg-
ment must . . . demonstrate either . . . that the defendant’s
showing was in fact insufficient or . . . that there was a triable
issue of fact material to the defendant’s showing.” Hanson, 87
Cal. Rptr. 2d at 493 (internal quotation marks omitted). The
employee can satisfy its burden by “produc[ing] substantial
responsive evidence that the employer’s showing was untrue
or pretextual.” Id. (internal quotation marks omitted). A
“plaintiff may establish pretext either directly by persuading
the court that a discriminatory reason more likely motivated
the employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence.” Godwin, 150
F.3d at 1220 (internal quotation marks omitted). If a plaintiff
uses circumstantial evidence to satisfy this burden, such evi-
dence “must be specific” and “substantial.” Id. at 1221. “An
employee in this situation can not simply show the employ-
er’s decision was wrong, mistaken, or unwise.” Morgan v.
Regents of the Univ. of Cal., 105 Cal. Rptr. 2d 652, 670 (Cal.
Ct. App. 2000) (internal quotation marks omitted). “Rather,
the employee must demonstrate such weaknesses, implausi-
bilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons for its action that
a reasonable factfinder could rationally find them unworthy of
credence . . . and hence infer that the employer did not act for

Dr. Kaisler-Meza’s January 2006 report only released Carauddo to spend
a maximum of thirty-five percent of his day lifting or carrying between
twenty-one and fifty pounds, whereas, an installer is required to carry up
to fifty pounds for up to sixty-six percent of the day. Even in February,
he was cleared to lift a maximum of only thirty pounds.
 FEHA v. LUCENT TECHNOLOGIES 5377
the . . . non-discriminatory reasons.” Id. (internal quotation
marks, emphasis, and citation omitted).24

First, DFEH argues that Lucent increased the lifting and
carrying requirements for the installer position to one-hundred
pounds when it was informed that Carauddo could lift and
carry fifty pounds. The evidence shows that sometime during
Carauddo’s disability period, Lucent’s Director of Operations
for installation in the United States, Christopher Camacho,
created an Occupational Requirements form (“the form”) for
the installer position. The form indicated that installers were
required to frequently lift and carry weights between fifty and
one-hundred pounds, and occasionally lift and carry weights
exceeding one-hundred pounds. This one-hundred pound
requirement from the form is inconsistent with the official job
description, and Camacho himself refers to only a fifty pound
requirement in his October 2008 declaration. Furthermore, as
previously discussed, the record is clear that at no time before
Carauddo’s termination in January 2006 did any of his doc-
tors clear him to perform the essential functions of the
installer position as described by Lucent’s official job descrip-
tion. Any evidence of a one-hundred pound requirement
therefore is inconsequential, as at the time of his termination
Carauddo was not demonstrated to be physically capable of
frequently carrying weights up to fifty pounds for one-
hundred feet.

Next, DFEH and Carauddo argue that Lucent’s skepticism
about Carauddo’s ability to lift fifty pounds is evidence of
pretext. This argument, however, lacks merit because the evi-
dence most favorable to Carauddo shows that in January he
was released to work with certain restrictions, including only
occasionally carrying amounts up to fifty pounds. The job
description, however, required “frequent” carries of fifty
24
Although DFEH failed to argue pretext before the district court, we
will consider pretext because the allegation of a “discriminatory animus”
was raised below. See Morgan, 105 Cal. Rptr. 2d at 670.
5378 FEHA v. LUCENT TECHNOLOGIES
pounds. His post-termination FCE and doctor report were
even more limited.

[19] DFEH and Carauddo also argue that the circum-
stances surrounding the scheduling of Carauddo’s FCE raise
a genuine issue of material fact. Carauddo additionally argues
that Lucent’s failure to consider the results of the FCE could
establish a pretext. The evidence suggests that Utermahlen
originally requested an FCE for Carauddo on January 20,
2006, but cancelled this request three days later. On January
31, 2006, six days after his termination, Carauddo underwent
a scheduled FCE and was cleared to return to work, but with
various hour restrictions below that required of an installer.
Furthermore, fatigue prevented Carauddo from physically
demonstrating that he could lift or carry fifty pounds at the
FCE. The scheduling of the FCE, therefore, fails to raise a
genuine issue of material fact as to pretext, as it did not show
that Carauddo could perform the essential functions of the
installer position.

[20] Additionally, DFEH and Carauddo argue that Lucent
has a one-hundred percent healed policy and that this raises
a genuine issue of material fact as to pretext. Although Uter-
mahlen informed Carauddo’s wife that he “must be one-
hundred percent to return to gainful employment” and
Lucent’s policy provides disabled employees with an addi-
tional six months of unpaid leave only if their “prognosis for
full recovery is within six months of the expiration of [their]
sickness disability benefits,” this evidence does not establish
pretext because here the undisputed facts demonstrate that
Lucent attempted to accommodate him by continually assess-
ing him on an individual basis. ER 354, 441; see Gelfo, 43
Cal. Rptr. 3d at 886 n.11 (a “policy requiring an employee be
‘100 percent healed’ before returning to work is a per se vio-
lation” when the employer does not make an individualized
assessment of whether the employee can perform essential
functions of position with accommodation). This evidence,
therefore, does not raise a genuine issue of material fact.
 FEHA v. LUCENT TECHNOLOGIES 5379
[21] DFEH’s contention that Lucent’s continual reference
to the degenerative nature of Carauddo’s disability establishes
a pretext is similarly unavailing. DFEH cites evidence that
Utermahlen characterized Carauddo’s condition as a “multile-
vel disc disease, in itself . . . a long term condition, which
includes physical limitations,” ER 357, “degenerative in
nature,” ER 358, and a “multi level disc disease,” ER 357.
Utermahlen also characterized Carauddo’s ability to lift fifty
pounds as a “miracle recovery.” ER 519. Indeed the January
“occasional”-fifty-pounds assessment did not hold. In any
case, this fleeting evidence does not establish a pretext
because it is ambiguous and insubstantial. See Godwin, 150
F.3d at 1221.

[22] Finally, Carauddo argues that Lucent’s failure to pro-
vide him with an additional six months of leave pursuant to
its policy established pretext. Lucent informed Carauddo of
his right to apply for an additional six month leave of absence,
but he failed to do so. Thus, this evidence does not raise a
genuine issue of material fact as to pretext.

For the aforementioned reasons, DFEH has failed to raise
a genuine issue of material fact as to pretext. Accordingly, the
district court’s grant of summary judgment was not in error.

D. Unlawful Failure to Take All Reasonable Steps
Necessary to Prevent Discrimination

The district court granted Lucent summary judgment on
DFEH’s claim that Lucent unlawfully failed to take all rea-
sonable steps necessary to prevent discrimination because
there was no viable claim for discrimination. Lucent III, 2008
U.S. Dist. LEXIS 98960, at *41. We affirm.

[23] Under the FEHA, it is unlawful “[f]or an employer
. . . to fail to take all reasonable steps necessary to prevent dis-
crimination and harassment from occurring.” Cal. Gov’t Code
§ 12940(k). The California courts have held that this subsec-
5380 FEHA v. LUCENT TECHNOLOGIES
tion is a separate unlawful employment practice. Carter v.
Cal. Dept. of Veterans Affairs, 135 P.3d 637, 645 n.4 (Cal.
2006). Nevertheless, employers are not liable for failing to
take necessary steps to prevent discrimination, “except where
the [discriminatory] actions took place and were not prevent-
ed.” Trujillo v. N. Cnty. Transit Dist., 73 Cal. Rptr. 2d 596,
602 (Cal. Ct. App. 1998); see Carter, 135 P.3d at 645 n.4.
DFEH, therefore, cannot prevail on this claim because the
evidence does not show that Lucent discriminated against
Carauddo. Accordingly, the district court’s grant of summary
judgment on this claim was not in error.

IV. Wrongful Termination in Violation of Public Policy

The district court held that no genuine issue of material fact
existed as to Carauddo’s wrongful termination claim because
DFEH could not prevail on any of its claims under the FEHA.
Lucent III, 2008 U.S. Dist. LEXIS 98960, at *42. We affirm.

[24] Under California common law, although “an at-will
employee may be terminated for no reason, or for an arbitrary
or irrational reason, there can be no right to terminate for an
unlawful reason or a purpose that contravenes fundamental
public policy.” Silo v. CHW Med. Found., 45 P.3d 1162, 1166
(Cal. 2002) (internal quotation marks omitted). Nevertheless,
“[t]his public policy exception to the at-will employment rule
must be based on policies carefully tethered to fundamental
policies that are delineated in constitutional or statutory provi-
sions.” Id. at 1166 (internal quotation marks omitted). The
elements for this tort are (1) the existence of a public policy
and (2) a nexus between the public policy and an employee’s
termination. See Turner v. Anheuser-Busch, Inc., 876 P.2d
1022, 1034 (Cal. 1994). Although “disability discrimination
can form the basis of a common law wrongful discharge
claim,” City of Moorpark v. Superior Court, 959 P.2d 752,
763 (Cal. 1998), there are no genuine issues of material fact
remaining as to any of DFEH’s disability discrimination
 FEHA v. LUCENT TECHNOLOGIES 5381
claims. The district court’s determination that Carauddo could
not prevail on this cause of action, therefore, was correct.

CONCLUSION

For the foregoing reasons, the district court was correct to
deny DFEH’s motion to remand and Carauddo’s motion to
intervene as a right. Furthermore, the permissive intervention
allowed was not improperly restrained and there is no genuine
issue of material fact as to any of DFEH or Carauddo’s
claims. Accordingly, the district court’s orders and grant of
summary judgment are affirmed.

AFFIRMED.

IKUTA, Circuit Judge, dissenting:

The majority today purports to overrule longstanding Ninth
Circuit precedent that is, quite literally, hornbook law: a party
is an interested party for purposes of diversity jurisdiction
when it has some control over the litigation. See Wright &
Miller, Federal Practice & Procedure § 1556 (3d ed.) (citing
Atchison, T. & S.F. Ry. Co. v. Phillips, 176 F. 663 (9th Cir.
1910)). Based on this binding precedent, we must dismiss for
lack of jurisdiction. I respectfully dissent.

I

The crucial question for jurisdiction in this case is whether
the Department of Fair Employment and Housing (DFEH), a
California agency, constitutes a party to this action for pur-
poses of diversity jurisdiction. If DFEH is an interested party,
then complete diversity is lacking, because DFEH is equiva-
lent to the state and a state cannot be a citizen of itself. See
Moor v. Alameda Cnty., 311 U.S. 693, 717 (1973).
5382 FEHA v. LUCENT TECHNOLOGIES
A

The answer to this question is established by long-standing
precedent. Federal courts have diversity jurisdiction over con-
troversies “between citizens of different states.” U.S. Const.
art. III, § 2, cl. 1. As a general rule, when jurisdiction depends
on the party, the Court determines jurisdiction based on the
party named in the record. Mo., Kan. & Tex. Ry. Co. v. Hick-
man (hereinafter Missouri Railway), 183 U.S. 53, 54 (1901)
(citing Osborn v. Bank of United States, 22 U.S. (I Wheat.)
738 (1824)).

Notwithstanding this general rule, under rare circumstances
the presence of a non-diverse party on the record will not
destroy diversity. In Walden v. Skinner, the Supreme Court
explained that although the beneficiary of a trust had named
the trust’s executors as defendants in an action to obtain title
to trust property, the executors’ citizenship did not count for
determining diversity jurisdiction because they had no “inter-
est in or control over” the lawsuit and their only role “was to
perform the ministerial act of conveying the title if adjudged
to the complainant.” 101 U.S. 577, 589 (1894). And in Ex
parte Nebraska, the Court reaffirmed that “the mere presence
on the record of the state as a party plaintiff will not defeat
the jurisdiction of the Federal court when it appears that the
state has no real interest in the controversy.” 209 U.S. 436,
444 (1908).

Although the majority relies heavily on Missouri Railway,
that case addressed a different issue: whether the state of Mis-
souri was a real party in interest despite not being a party of
record. 183 U.S. at 58. The Court noted that even when a state
is not a named party, the state may still be a real party in
interest “when the relief sought is that which inures to it
alone, and in its favor the judgment or decree, if for the plain-
tiff, will effectively operate.” Id. at 59. Nevertheless, the
Court held that this exception was inapplicable in the case
before it, because the state did not have any “direct, pecuniary
 FEHA v. LUCENT TECHNOLOGIES 5383
interest in the result of the litigation,” and the state’s general
interest in “the welfare of all its citizens, in compelling obedi-
ence to the legal orders of all its officials, and in securing
compliance with all its laws,” was too remote. Id. at 60.

The Court further clarified its test for determining when a
party of record is a real party for jurisdictional purposes in
United States Fidelity & Guaranty Company v. United States,
204 U.S. 349 (1907). In that case, a material man1 employed
on a federal construction project brought an action to recover
on a payment bond, pursuant to a statute that required the
material man to bring suit in the name of the United States.
Id. at 354. The defendant challenged federal jurisdiction on
the ground that the United States was a nominal party and
there was no other basis for federal jurisdiction. Id. The Court
disagreed, holding that the United States was not “merely
[a ]nominal or formal party” even though only the persons
who supplied labor or materials “will get the benefit of the
judgment” because the United States was a party to the under-
lying construction contract and had an interest in enforcing
the contract on behalf of the material man. Id. at 356-57. In
short, even though the United States received no immediate
monetary benefit from the suit, it was a party to the case for
jurisdictional purposes.

B

From these Supreme Court cases and others, we distilled
our own approach. See Atchison, 176 F. 663. In Atchison, we
considered a wrongful death action brought by a surviving
spouse against a railway company. Id. at 664-65. In order to
establish that she was the sole beneficiary of her husband’s
estate, the plaintiff named her husband’s parents as defen-
dants. Id. at 665. The railway company claimed that the fed-
1
A material man is the person who supplies materials required for a con-
struction project.
5384 FEHA v. LUCENT TECHNOLOGIES
eral court lacked jurisdiction, because the parents and spouse
were citizens of the same state. Id. at 666.

In determining whether the parents’ citizenship counted for
diversity jurisdiction purposes, we stated that under Supreme
Court precedents, the key question was whether the parties
have “a real interest in the cause.” Id. at 667. But we further
noted that for “[a] party to be ‘interested’ in an action,” it
“need not be one who may gain or lose something therein.”
Id. Rather, “[t]he word has a broad meaning, and includes all
those who as parties have some control over the action,
whether they will be personally affected thereby or not.” Id.
Because control over the action is significant, we noted that
“an administrator, a trustee, or an executor is a real party in
interest when he is bringing or defending a suit for the estate
which he represents” because “[s]uch a party brings or
defends the suit—employs counsel—and is directly responsi-
ble for going on with the litigation.” Id. (citing Chappedelaine
v. Dechenaux, 8 U.S. (4 Cranch) 306 (1808)). Because the
parents of the decedent in Atchison had neither an interest in
the controversy nor any control over it, we held that they were
nominal parties, and their citizenship did not count for deter-
mining diversity. Id.

Atchison thus made clear that either control of the case or
a tangible interest in it suffices to make the citizenship of a
party of record count for diversity purposes. Simply put, par-
ties may have a “real interest” in a case if they have “some
control over the action, whether they will be personally
affected thereby or not.” Id. at 667. This rule is not contrary
to Missouri Railway. While that case concluded that the
state’s complete lack of interest in litigation was evidence that
it was not a real party, it did not establish the opposite rule,
namely, that obtaining a tangible benefit is necessary in order
for a state to be a real party in interest. See 183 U.S. 53; see
also U.S. Fid. & Guar. Co., 204 U.S. at 356-57. Because no
subsequent decision of this court has cast any doubt on the
Atchison rule, we are bound by it. See Hart v. Massanari, 266
 FEHA v. LUCENT TECHNOLOGIES 5385
F.3d 1155, 1170 (9th Cir. 2001) (“If a court must decide an
issue governed by a prior opinion that constitutes binding
authority, the later court is bound to reach the same result,
even if it considers the rule unwise or incorrect.”).

The majority concedes that California “arguably” controls
the litigation, but relies on Missouri Railway for the proposi-
tion that “control alone cannot render California a real party
in interest because a state can always bestow upon itself con-
trol over virtually any lawsuit via legislation.” Maj. op. at
5362 n.4. The majority does not quote any language from
Missouri Railway that supports this proposition. Nor could it,
because in fact Missouri Railway provides no support for the
majority’s newly invented rule. Indeed, Missouri Railway
does not even address the situation present in this case, where
a state not only is a named party, but actually controls the liti-
gation.

By contrast, Atchison enunciated a rule that is directly on
point here: a party to an action “includes all those who as par-
ties have some control over the action, whether they will be
personally affected thereby or not.” 176 F. at 667. In reaching
this conclusion, Atchison did not suggest that this rule would
apply only to private parties, not to the government. Rather,
Atchison explained that Fidelity, “an action brought in the
name of the United States for the benefit of materialmen and
laborers on bonds given in pursuance of certain acts of Con-
gress,” stood for the “principle” that “the parties whose citi-
zenship is important are those who have a tangible interest in
the controversy or exercise some control over it.” Id. at 668
(emphases added). Given that Missouri Railway is not on
point, while Atchison is directly applicable, the majority’s cir-
cumvention of our long-standing rule is inexplicable.

C

In this case, DFEH is the party of record. Moreover, DFEH
is the party that brought the suit and is also in control of the
5386 FEHA v. LUCENT TECHNOLOGIES
litigation. Indeed, the majority does not dispute that this is
DFEH’s litigation; it holds that Carauddo had no right of
intervention, see Maj. op. at 5366-67, and that the district
court did not abuse its discretion in placing various limitations
on Carauddo as an intervenor, see Maj. op. at 5368-69. In
light of the rule enunciated in Atchison that a party has a “real
interest” in the controversy if it has “some control over the
action,” whether the party “will be personally affected thereby
or not,” 176 F. at 667, DFEH’s complete control over the liti-
gation is sufficient to make DFEH a real party for jurisdiction
purposes. Accordingly, the majority errs in suggesting that
obtaining benefits from the litigation is a sine qua non of
being a real party.

Finally, although DFEH would obtain no monetary benefit
from the litigation, I would conclude that DFEH’s role in
enforcing anti-discrimination laws gives it a sufficiently sub-
stantial interest for diversity jurisdiction purposes. The Cali-
fornia Fair Employment and Housing Act (FEHA) authorizes
DFEH to bring suit in the name of California to “provide
effective remedies that will both prevent and deter unlawful
employment practices,” Cal. Gov’t Code § 12920.5 (citing
Cal. Const. art. XIV, § 1; Cal. Gov’t Code §§ 12930(h),
12965), including injunctive measures such as training and
policy changes, see id. §§ 12965(c)(3), 12970. Specifically,
upon a finding of discrimination or harassment, DFEH’s prac-
tice is to order the offending employer to “cease and desist the
[discriminatory] practice, report the manner of compliance,
and take other remedial action as appropriate.” Peralta Cmty.
Coll. Dist. v. Fair Emp’t & Hous. Comm’n, 801 P.2d 357, 365
(Cal. 1990) (citing Cal. Gov’t Code § 12973). In light of the
FEHA’s broad remedial purpose, see Cal. Gov’t Code
§ 12920 (noting that employment discrimination “foments
domestic strife and unrest, deprives the state of the fullest uti-
lization of its capacities for development and advancement,
and substantially and adversely affects the interests of
employees, employers, and the public in general”), the Cali-
fornia Supreme Court has characterized this procedure as
 FEHA v. LUCENT TECHNOLOGIES 5387
serving “the statutory purpose of providing effective remedies
that will eliminate the discriminatory practice and prevent its
recurrence, not just as to the immediate victim, but as to all
employees present and future,” Peralta, 801 P.2d at 365 (cit-
ing Cal. Gov’t Code § 12920). DFEH’s specific statutory
responsibility to further a well-defined state interest in reme-
dying discrimination is far removed from the general interest
in good government that the Court held was insufficient to
constitute an interest in the result of litigation in Missouri
Railway.

That such an interest is sufficient to give DFEH an interest
in the lawsuit for diversity purposes is suggested by the
Supreme Court’s standing doctrine. As in the context of deter-
mining if a party is a real party or merely a nominal party for
diversity purposes, the Supreme Court has likewise distin-
guished between real and nominal parties for standing pur-
poses. In this regard, the Supreme Court has indicated, a state
has standing when it raises claims that implicate “its sover-
eign or quasi-sovereign interests,” Pennsylvania v. New Jer-
sey, 426 U.S. 660, 665 (1976), and lacks “standing under the
parens patriae doctrine” when it “is only a nominal party
without a real interest in its own,” Alfred L. Snapp & Son v.
Puerto Rico, 458 U.S. 592, 600 (1982). Because California’s
interest in vindicating its citizens’ rights to a discrimination-
free workplace is one that it has “attempt[ed] to address
through its sovereign lawmaking powers,” id. at 609, Califor-
nia has parens patriae standing to pursue relief for Carauddo.
Just as DFEH’s interest in the litigation is sufficient to make
it a real party for standing purposes, its interest is likewise
sufficient to make it a real party for purposes of diversity
jurisdiction.

II

In sum, DFEH is in control of the lawsuit which it is bring-
ing pursuant to a strong state interest in vindicating the state’s
non-discrimination policies. Cf. U.S. Fid. & Guar. Co., 204
5388 FEHA v. LUCENT TECHNOLOGIES
U.S. 349 (holding that the federal government’s interest in
vindicating the rights of third parties can constitute a pertinent
interest in a lawsuit). Under the rule enunciated in Atchison,
this is more than sufficient to make DFEH a party whose citi-
zenship counts for diversity purposes. Because the parties are
not completely diverse, we lack jurisdiction. Therefore, I dis-
sent.